Per- and polyfluoralkyl substances (PFAS) are long-lived chemicals that have been widely used in consumer products, including fire-retardant foam, textiles and non-stick cookware, since at least the 1950s. PFAS chemicals can cause reproductive, developmental, liver and kidney damage and have been linked to cancer. The chemicals are often found in drinking water supplies at levels that are unsafe. Learn more about pending federal legislation to address PFAS contamination here.
EPA’s Draft Interim PFAS Recommendations
In February 2019, EPA released its Action Plan for PFAS chemicals, including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). PFOA and PFOS are ubiquitous, long-chain PFAS chemicals that have been phased out by some manufacturers, but pose a continuing concern for some communities across the country due to a legacy of PFOA and PFOS contamination. The Action Plan failed to take strong steps to regulate PFAS chemicals under several environmental statutes and to establish cleanup standards for PFAS contaminated sites across the country.
In April 2019, the EPA released its draft interim recommendations to address groundwater contaminated with PFOA and PFOS. The guidance provides interim recommendations for screening levels and preliminary remediation goals to inform final cleanup levels for PFOA and PFOS contamination of groundwater that is a source of drinking water.
In June 2019, California Attorney General Xavier Becerra led Colorado Attorney General Phil Weiser and Oregon Attorney General Ellen Rosenblum in filing comments with the EPA in response to the interim recommendations. The attorneys general noted that the EPA’s suggested screening levels and preliminary remediation goals are too high, which could result in many contaminated sites being insufficiently cleaned up or not identified at all. The comments pointed out that the interim recommendations should have included more PFAS chemicals than just PFOA and PFOS as all PFAS chemicals cause adverse human health effects. Lastly, the letter requests that EPA immediately designate PFAS chemicals as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund statute), which would likely trigger the cleanup of contaminated groundwater under the law.
That same month, Michigan Attorney General Dana Nessel submitted her own comments on EPA’s draft interim recommendations for PFOA and PFOS groundwater contamination. Attorney General Nessel’s comments noted that state and federal agency research indicates that the EPA’s screening levels and preliminary remediation goals should be lower than the EPA’s suggestions. The comments also urged the EPA to set a timeframe for addressing PFAS chemicals beyond just PFOA and PFOS as there is an emerging consensus that other PFAS chemicals have adverse health impacts.
In December 2019, the EPA released its final interim recommendations to address groundwater contaminated with PFOA and PFOS chemicals. The guidance’s suggested screening levels and preliminary remediation goals are high, which could result in many contaminated sites being insufficiently cleaned up or not identified.
Supporting Congressional Action
In July 2019, as Congress considered enacting legislation with PFAS provisions, New York Attorney General Letitia James led a coalition of 20 attorneys general in sending a letter to Congress discussing states’ immediate legislative needs to respond to PFAS contamination. The letter requested that Congress instruct the EPA to speed cleanups by designating PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (or Superfund statute) and to evaluate whether additional PFAS chemicals should be designated as “hazardous substances.”
The letter also petitioned Congress to add PFAS chemicals to the Emergency Planning and Community Right-to-Know Act’s Toxic Release Inventory (TRI) to facilitate the disclosure of information about new potential sources and areas of PFAS contamination. Additionally, the attorneys general requested that the U.S. Geological Survey (USGS) be tasked with conducting a nationwide sampling effort and survey of human and environmental exposure to PFAS in order to determine the scope of PFAS contamination. Congress was also urged to prohibit the use and storage of a firefighting foam containing PFAS chemicals that is often used in firefighting training activities at military bases and to provide medical screening for service members and members of the public who may have been exposed to PFAS chemicals.
In August 2019, Pennsylvania Attorney General Joshua Shapiro sent his own letter to Congress, requesting that Congress pass legislation to respond to the PFAS contamination crisis. As the two houses reconcile the differences in their respective versions of the fiscal year 2020 National Defense Authorization Act (NDAA) (“2019 NDAA and Appropriation Bills”), the letter urged that Congress adopt two provisions in the Senate NDAA: advancing Centers for Disease Control research on the health and environmental impacts of PFAS chemicals and requiring the EPA to conduct studies of the PFAS family of chemicals under the Safe Drinking Water Act (SDWA). The letter also supported multiple elements of the House’s NDAA, such as the listing of all PFAS chemicals under Superfund as a hazardous substance; phasing out the military’s use of firefighting foam containing PFAS chemicals; requiring cooperative agreements between the Department of Defense (DOD) and states for cleanup of PFAS chemicals near military installations; and listing PFAS chemicals as a toxic pollutant or hazardous substance under the Clean Water Act.
In December 2019, the conference report for the fiscal year 2020 NDAA was released. Although the conference report did not include the strongest PFAS provision that the attorneys general requested – designating PFOA and PFOS as hazardous substances under Superfund – the legislation did include many other provisions the attorneys general had supported. Included in the conference report were the following provisions that the attorneys general had pushed: the USGS sampling effort; banning military use of firefighting foam containing PFAS chemicals after October 1, 2024; and use of cooperative agreements between states and the DOD for removal of PFAS contamination near military installations.
The House passed the fiscal year 2020 NDAA on December 11, 2019 and the Senate passed the legislation on December 17, 2019. The president signed the bill into law on December 20, 2019. More information about the PFAS provisions in the NDAA is available in the PFAS Federal Legislation report (“2019 NDAA and Appropriation Bills”).
The House of Representatives expressed disappointment that the 2019 legislation did not go far enough to address PFAS issues. Accordingly, in January 2020, the House passed the PFAS Action Act (H.R. 535), omnibus-PFAS legislation. Among numerous provisions, the PFAS Action Act includes a provision that would designate PFOA and PFOS as hazardous substances under the Superfund statute. Senate leadership is not expected to take up companion legislation in the Senate for the foreseeable future. More information about the PFAS Action Act is available in the PFAS Federal Legislation report (“Summary of Key Bills”).
In October 2020, as the two houses of Congress attempted to reconcile differences in their respective versions of the fiscal year 2021 NDAA (“2020 NDAA, WRDA and Appropriation Bills”), Michigan Attorney General Nessel led a coalition of 20 attorneys general in sending a letter to Congress about the states’ PFAS-related priorities for the enacted-version of the fiscal year 2021 NDAA. The letter requested that the final version of the fiscal year 2021 NDAA include several provisions in the House-passed version of the fiscal year 2021 NDAA. Most notably the letter urged Congress to include a requirement that DOD meet or exceed the most stringent cleanup standard for PFOS or PFOA contamination between an enforceable state standard under Superfund, an enforceable federal standard under Superfund or a health advisory under the SDWA from DOD or National Guard activities found in drinking water or in groundwater that is not currently used for drinking water. The letter also encouraged Congress to act to regulate PFAS chemicals, including designating them as a hazardous substance under the Superfund statute.
In December 2020, the House and Senate Armed Services Committee released the conference report for the fiscal year 2021 NDAA, which the House passed on December 8 and the Senate passed on December 11. On January 1, 2021, the Senate, after the House had earlier done the same, overrode the President’s veto of the bill and the fiscal year 2021 NDAA became law. Unfortunately, most of the House-passed provisions that the attorneys general had requested be included in the final bill were not ultimately included in the final fiscal year 2021 NDAA. However, the conference report did include the prohibition on DOD procuring items containing PFAS chemicals, including cookware, and carpets and upholstery with stain-resistant coating as requested by the attorneys general.
Toxic Release Inventory
In December 2019, the EPA published an advanced notice of proposed rulemaking seeking public input as it considers adding certain PFAS chemicals to the TRI. The EPA’s proposal was issued before the fiscal year 2020 NDAA was enacted. The TRI program provides critical information to federal, state, and local governments about releases of toxic chemicals into the environment.
Companies are required to report on an annual basis the amounts of chemicals on the TRI released to the environment or managed as waste, as well as pollution prevention and recycling data on these chemicals. The TRI program incentivizes companies to improve their environmental performance and aids in the development of appropriate regulations, guidelines, and standards for managing toxic chemicals. The ANPRM requested public comments on which PFAS chemicals should be evaluated for listing on the TRI, how to list them, and what the appropriate reporting thresholds would be given the known harms PFAS chemicals pose to human health and the environment.
In February 2020, New York Attorney General James led a coalition of eighteen states in filing comments responding to the EPA’s proposal. In their comments, the attorneys general noted that Congress, through provisions to the NDAA, added certain individual PFAS chemicals to the TRI and established reporting thresholds of 100 pounds for these chemicals. The attorneys general commended Congress for these regulatory actions, but urged the EPA to proceed with a rulemaking to cover the entire family of PFAS chemicals. The coalition recommended the EPA add all PFAS chemicals to the TRI as a single category listing as well as add individual PFAS chemicals to the extent that they are not already listed pursuant to the NDAA and the EPA has validated a method to measure the level of each chemical. The attorneys general also urged the EPA lower the TRI reporting threshold to one pound for both individual PFAS chemicals and the PFAS chemicals category, considering the threat these chemicals pose to both human health and the environment.
In March 2019, New Mexico Attorney General Hector Balderas filed a lawsuit against the U.S. Air Force in federal district court in New Mexico for PFAS contamination of drinking water supplies near Cannon Air Force Base and Holloman Air Force Base in New Mexico. The complaint alleges that the U.S. Air Force has sprayed firefighting foam containing PFAS on the ground and tarmacs in fire training and actual firefighting events at the New Mexico bases for more than 50 years, allowing PFAS to seep into the surrounding groundwater in violation of the New Mexico Hazardous Waste Act. New Mexico is seeking injunctive relief requiring abatement of ongoing violations of the Act and a permanent injunction for the Air Force to take all steps necessary to achieve permanent and consistent compliance with the Act.
In May 2019, New Mexico Attorney General Balderas sent a letter to the U.S. Air Force expressing the state’s continued concern about PFAS contamination at the Cannon and Holloman Air Force bases. The letter noted that the state’s sampling of Lake Holloman, near Holloman Air Force Base, had found PFAS contamination far in excess of EPA’s health advisory level. In order to protect its citizens, the state demanded that the U.S. Air Force take immediate action to close Lake Holloman and restrict public access to the lake. Further, the state insisted in the letter that the federal government make public all information in its possession related to the risk of PFAS exposure in and around the Cannon and Holloman Air Force bases.
In July 2019, New Mexico Attorney General Balderas filed a motion for a preliminary injunction to require the U.S. Air Force to take steps to protect people and the environment surrounding the two Air Force bases. The motion requested that the U.S. Air Force expeditiously turn over documents associated with New Mexico’s March 2019 lawsuit against the U.S. Air Force, conduct research to ascertain the extent of the PFAS contamination at the bases and take interim measures to protect human health near the bases. Attorney General Balderas stated that the motion should be granted because if New Mexico is not provided the relief it seeks, irreparable harm to public health, the environment and local businesses that depend on a non-toxic environment will continue to occur.
In June 2020, the Judicial Panel on Multidistrict Litigation (JPML) ordered transfer of the litigation to the federal district court in South Carolina. The JPML found that the litigation should be transferred because the New Mexico litigation shares common factual questions with the actions pending in South Carolina.
Regulation of New Uses for PFAS Chemicals
In March 2020, the EPA released a supplemental notice of proposed rulemaking to promulgate a significant new use rule for long-chain PFAS chemicals. The proposal would require importers of products that contain long-chain PFAS in their surface coatings to receive EPA approval under the agency’s new use procedures before importing the products. This is a change from the agency’s original proposal released in 2015 that required importers to receive EPA approval for products containing long-chain PFAS anywhere within the product, and not just in the surface coatings.
In April 2020, a coalition of 18 attorneys general led by New York Attorney General James filed comments urging the EPA to broaden its regulation of new uses for PFAS chemicals. The coalition suggested that the EPA should strengthen the rule by expanding the range of PFAS chemicals covered to all products containing long-chain PFAS, not only products with PFAS surface coatings. The coalition also urged the agency to include review and regulation of both the importing and processing of products containing PFAS in the final rule and to not allow any exemptions to the reporting requirements for products with minimal amounts of PFAS.
In July 2020, the EPA released the final rule for significant new use of long-chain PFAS chemicals. The final rule stopped short of adopting many of the protective provisions that the attorneys general urged be included in the final rule.
Regulating PFAS Under the SDWA
In March 2020, the EPA issued a preliminary decision to move forward with the regulation of two previously unregulated PFAS contaminants under the SDWA. In the preliminary decision, the EPA concluded that the regulation of PFOA and PFOS presents a meaningful opportunity for reducing health risks and that the promulgation and enforcement of a national drinking water standard is in the public interest.
In June 2020, California Attorney General Becerra, Pennsylvania Attorney General Shapiro, and Wisconsin Attorney General Josh Kaul led a coalition of 22 attorneys general in filing comments on the preliminary determination urging the EPA to further strengthen and expand regulation of PFAS chemicals. In their comments, the coalition encouraged the EPA to establish drinking water standards for other PFAS in addition to PFOA and PFOS, as well as evaluate approaches to regulate PFAS as a class, in order to protect public health and ensure safe drinking water. The coalition also urged the EPA to expedite the development of final drinking water standards for PFOA and PFOS given the severe health impact of PFAS contamination and the urgent need to address this issue.
In January 2021, the EPA released a final determination on regulating certain PFAS chemicals under the SDWA. The EPA determined that it will regulate PFOA and PFOS, but it did not strengthen or expand regulation of other PFAS chemicals as requested by the attorneys general.